Griffin v. Griffin
699 P.2d 407 (1985)

  • Clarence and Mary were married and had a child (Hardy). Then they got a divorce.
    • As part of the divorce decree, Mary got physical custody of Hardy, but they shared joint legal custody. This included a clause in the separation agreement that “Both parents shall fully and equally participate in the education of their child. Schools shall be selected jointly.”
  • Mary wanted to enroll Hardy in a Buddhist school. Clarence objected.
    • Mary tried to get Clarence to at least visit the school, but he refused.
  • Mary went ahead and enrolled Hardy in the school. Clarence went to court with a motion to enforce the separation agreement.
    • Clarence argued that the separation should be read to say that if he and Mary could not come to an agreement, the courts should make the decision for them as a tie-breaker.
  • The Trial Court denied Clarence’s motion. Clarence appealed.
    • The Trial Court found the separation agreement did not have a provision for what to do in case of parent disagreement.
    • The Court found that under Colorado law (14-10-130, 6 C.R.S.), if there was no agreement to share education decisions, the custodial parent (aka Mary) would get to choose. So, it makes sense for the custodial parent to get to chose in case of a tie.
      • Although mathematically that means that that Clarence could never win a disagreement.
  • The Appellate Court reversed. Mary appealed.
    • The Appellate Court found that the separation agreement superceded 14-10-130 and therefore “the court must determine the issue of choice of schools in case of parental deadlock.”
  • The Colorado Supreme Court reversed.
    • The Colorado Supreme Court looked at that separation agreement and found that it contained no provisions on how to resolve deadlocks. In essence, it was simply an ‘agreement to agree’.
      • If you remember Contract Law, ‘agreements to agree’ are generally held to be unenforceable because the courts cannot force parties to reach an agreement and cannot grant a remedy.
    • Since the agreement is unenforceable, the Court found that it should fall back on 14-10-130, which gives control to the custodial parent.
    • The Court found that courts are strangers to children, and as such are less equipped to make decisions that the parents.
      • In addition, the Court noted that in cases where a religious school is an option, the courts may be constitutionally barred from making a decision due to 1st Amendment concerns.
  • This case, which held that the custodial parent has a presumptive right to make decisions for the child over the objections of the non-custodial parent is a minority position. Most jurisdictions would instead base their decision solely on the best interests of the child, without regards to which parent has custody.